Madras High Court
K.G.Suresh vs The Secretary To Government Of ... on 7 September, 2022
Order dated : 07.09.2022
Writ Petition No.33674 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.09.2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
Writ Petition No.33674 of 2017
and
W.M.P.No.37269 of 2017
1.K.G.Suresh
S/o.Gopalan
2.G.Madavan
S/o.Gurumanan
3.M.Manoharan
S/o.Mundan
4.J.Maadhan
S/o.Johi Gounda
5.L.Ningaraj
S/o.Lingaiya
6.S.Mohamed Iqpal
S/o.Shahul Hameed
7.B.Rajaiyan
S/o.Basuvan ... Petitioners
Vs.
1.The Secretary to Government of Tamil Nadu,
Municipal Administration and Water Supply
Department,
Fort St.George, Chennai - 600 009.
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Writ Petition No.33674 of 2017
2.The Director of Town Panchayat,
Kuralagam Buildings,
Chennai - 600 108.
3.The Executive Officer,
Deversolai Town Panchayat,
Nilgiris District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Mandamus directing the respondents to bring the
petitioners under regular time scale from the date of 10 posts of pump operators
sanctioned by the second respondent on 10.07.2000 in Na.Ka.No.13626-
1/2000/A3 dated 10.07.2000 with all consequential service and monetary
benefits.
For Petitioners : Mr.P.I.Thirumoorthy
For Respondents : Mr.B.Vijay
Additional Government Pleader [R1 & R2]
No appearance [R3]
*****
ORDER
A writ of mandamus has been filed to direct the respondents to bring the
petitioners under regular time scale from the date of 10 posts of pump operators
sanctioned by the second respondent on 10.07.2000 in Na.Ka.No.13626-
1/2000/A3 dated 10.07.2000 with all consequential service and monetary
benefits.
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Writ Petition No.33674 of 2017
2. The petitioners were engaged as daily wage water supply assistant in
the third respondent Town Panchayat.
3. Learned counsel appearing on behalf of the petitioners made a
submission that the petitioners are engaged continuously as daily wage
employees till date and therefore, they are entitled to be regularised in the
sanctioned post in the time scale of pay. The Government issued orders in
G.O.Ms.No.198, Municipal Administration and Water Supply Department, dated
26.10.1998 and G.O.Ms.No.125, Municipal Administration and Water Supply
Department, dated 27.05.1999, granting the benefit of regularisation in respect of
daily wage employees employed in various Town Panchayats. The petitioners
state that 10 regular posts of pump operators to water supply section has been
sanctioned by the Government on 10.07.2000 and the third respondent submitted
a proposal in favour of the petitioners for regularising their services in the
sanctioned post in the time scale of pay. Thus, the services of the petitioners have
to be regularised in the sanctioned post.
4. Learned counsel appearing on behalf of the petitioners is of an opinion
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Writ Petition No.33674 of 2017
that the cases of similarly placed employees were considered by the Government
and their services were regularised and thus, the petitioners are also entitled to
the benefit of regularisation.
5. Learned Additional Government Pleader appearing on behalf of the
respondents 1 and 2 raised an objection by stating that the petitioners were not
appointed in accordance with the recruitment rules in force. They were engaged
by the Executive Officer of the Town Panchayat as daily wage employees and
even, no appointment order has been issued to the petitioners. Thus, they are not
entitled for regularization and permanent absorption in view of the judgment of
the Supreme Court of India. It is contended that the policy of the State of Tamil
Nadu was changed on account of technological advancement in water supply
equipments, which necessitated to avail the options of outsourcing certain
activities in water supply management or involving SHGs on contractual basis
primarily for providing livelihood opportunities to vulnerable segments and
increase the stakeholder's participation. Therefore, the Town Panchayats were
advised to engage any manpower for limited hours in a day to manage the water
supply by means of contractual arrangements as daily wage employees.
Accordingly, the third respondent has engaged the petitioner on daily wage basis
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and on contractual arrangement. The petitioners have not issued with an order of
appointment in any sanctioned post and therefore, they are not eligible for
regularization.
6. With reference to the Government orders relied on by the petitioners,
learned Additional Government Pleader submitted that subsequent to the
judgment of the Supreme Court of India in the case of Secretary, State of
Karnataka Vs. Uma devi [ 2006 4 SCC 1], the Government changed its policy
and accordingly, proposals, if at all submitted, will not be considered in violation
of the principles settled by the Supreme Court of India. Despite the fact that
instructions were granted to the competent authorities not to submit any such
proposal for irregular and illegal appointment, in the present case, the third
respondent submitted a proposal. However, the said proposal was not considered
in view of the judgment of the Supreme Court of India [supra].
7. In the present case, the petitioners were appointed in a sanctioned post.
Even an order of appointment was not issued to the petitioners, they were orally
engaged by the Executive Officer of the Town Panchayat to work as Water
Supply Assistant on temporary basis. The job of water supply assistant is a part-
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time job. However, the said factum was disputed by learned counsel for the
petitioners by stating that the services of the petitioners are engaged full time by
the third respondent. Beyond all these disputed factors, an order of appointment
was not issued to the petitioners and therefore, they were not recruited through
the procedures as contemplated under the rules. In view of the fact that the initial
appointment of the petitioners was not in accordance with the rules, the benefit of
regularization or permanent absorption cannot be granted.
8. Regularization or permanent absorption cannot be claimed as an
absolute right. Regularisation or permanent absorption cannot be granted in
violation of the recruitment rules in force. Equal opportunity in public
employment is the Constitutional mandate. Lakhs and Lakhs youth of our great
Nation are longing to secure public employment through open competitive
process and they are working hard for the purpose of succeeding in the
competitive process. While so, back door appointments or illegal or irregular
appointments, if regularised, undoubtedly, the fundamental rights of those
candidates, who all are aspiring to secure public employment through open
competitive process are infringed. The equality clause enunciated under the
Constitution must be implemented in its real spirit. Thus, the back door
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appointments are to be stopped forthwith in order to ensure that equal
opportunity in public employment is provided to all the eligible candidates
through open competitive process by implementing the rule of reservation.
9. The principles of justice requires that the Constitutional principles and
mandates are preserved in the interest of the society at large. Misplaced
sympathy or leniency, if leads to unconstitutionality, then the Courts would be
slow in showing such sympathy or leniency. Therefore, the leniency may be
permissible only in certain exceptional cases, in the event of no
unconstitutionality or non-violation of any Statutes and Rules. Thus, there cannot
be any misplaced sympathy in the matter of upholding the Constitutional
Philosophy and Ethos.
10. If at all, the benefit of regularisation and permanent absorption are
granted to irregular and illegal appointments in a routine manner, no doubt, the
fundamental rights of all eligible persons, who all are waiting for securing public
employment are violated. Courts are bound to consider the plea of those poor
people from rural and semi-urban areas of our great Nation, who all are preparing
meritoriously to face the competitive process with a fond of hope that their merits
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will be recognised by the State in one way or other for the purpose of securing
public employment. What would be the answer for those poor people from
villages and semi-urban areas, who all are mostly non exposed to these
illegalities and irregularities and corrupt activities in Government employment.
Thus, the Constitutional Courts are bound to protect the interest of those
meritorious candidates, who all are not before the Courts.
11. The principles for grant of regularisation and permanent absorption are
no more res integra and the Constitutional Bench of Hon'ble Supreme Court of
India settled the issue in the case of Uma Devi [supra]. Any decisions, which are
running counter to the principles laid down by the Hon'ble Constitution Bench of
India cannot be followed at this length of time and in the event of any such
consideration, the Courts are violating the principles settled by the Constitution
Bench and by the Hon'ble Apex Court in subsequent judgments.
12. Once the Constitution Bench has settled the principles regarding the
regularization and permanent absorption, any Government Order running counter
to the principles, cannot be implemented and based on such Government Orders,
benefits cannot be conferred by the Courts. The said position also has been
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unambiguously stipulated by the Constitution Bench of Supreme Court of India in
paragraph 54 of the judgment cited supra. In paragraph 53 of the Judgment, the
Supreme Court of India has given one time measure for the purpose of
regularizing the services for the purpose of clearing the proposals, which all are
pending before the Government for regularization. Such one time measure or
benefit granted cannot be continued for an indefinite period. In paragraph 54 of
the said judgment, the Hon'ble Supreme Court in unambiguous terms held that 'It
is also clarified that those decisions which run counter to the principle settled
in this decision, or in which directions running counter to what we have held
herein, will stand denuded of their status as precedents.' Therefore all the
judgments and Government Orders running counter to the principles laid down
by the Constitution Bench of the Supreme Court of India stands denuded of their
status as precedents and the said Government Orders or the judgments by the
High Courts or even by two Judges' Bench of the Hon'ble Supreme Court of India
cannot be followed. Those judgments are to be read in the context of the
particular facts and circumstances of the case.
13. However, the principles settled by the Constitution Bench is to be
followed as precedent. In the matter of following the precedents, again another
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Constitution Bench of the Hon'ble Supreme Court of India in the case of
National Insurance Company Limited Vs. Pranay Sethi and others reported in
2017 (6) SCC 680 held that the hierarchy in this aspect is to be maintained by all
Courts scrupulously.
14. Thus, any judgment running counter to the principles settled by the
Constitution Bench of the Hon'ble Supreme Court cannot be followed as a
precedent for the purpose of considering the relief. All such judgments are to be
confined only with reference to the facts of that particular case and cannot be
followed as a precedent. The Government has passed several such orders,
granting the benefit of regularization or permanent absorption on various
circumstances for many years by granting relaxation of Rules. Such relaxation of
Rules cannot be now granted in a routine manner, even by the Government. The
appointments made in an irregular or illegal manner cannot be regularized by
granting regularization or otherwise.
15. In view of the fact that the petitioners were not appointed in
accordance with the recruitment rules and they were engaged as daily wage
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employees temporarily and no appointment order has been issued to the
petitioners, the benefit of regularisation or permanent absorption cannot be
granted to the petitioners.
Accordingly, this Writ Petition fails and stands dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
07.09.2022
Index : Yes
Speaking order
gm
To
1.The Secretary to Government of Tamil Nadu,
Municipal Administration and Water Supply
Department,
Fort St.George, Chennai - 600 009.
2.The Director of Town Panchayat,
Kuralagam Buildings,
Chennai - 600 108.
S.M.SUBRAMANIAM., J
gm
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Order dated : 07.09.2022
Writ Petition No.33674 of 2017
Writ Petition No.33674 of 2017
07.09.2022
https://www.mhc.tn.gov.in/judis
